By Keiran Hardy

On Monday, the Federal Court of Australia upheld as valid the search warrant which allowed the AFP to raid the ABC’s Sydney offices last year. Those raids followed the publication of stories about ‘The Afghan Files’, a collection of leaked defence force documents which suggested that Australian soldiers may have committed war crimes in Afghanistan.

Justice Wendy Abraham ruled against the ABC, dismissing the application and ordering the national broadcaster to pay the other parties’ legal costs.

The ABC may still appeal the decision, but the judgment reaches firm conclusions that the AFP did not misuse its powers and that there are no explicit protections for journalists in the exercise of police search warrants.

The decision has been criticised as yet another blow to press freedom in Australia. There is some truth to this, although the courts can only operate within the legal framework set for them by Parliaments.

Adequate legal protections for journalists acting in the public interest do not exist. Until the government introduces explicit protections for journalists into Parliament, courts will continue to make similar decisions.

Why did the court uphold the search warrant?

The 117-page judgment is highly technical and focuses to a large extent on questions of statutory interpretation. The main legal issues in the case could not be resolved by reference to journalists’ rights or freedom of speech.

There are two main reasons why the court upheld the search warrant.

  1. The warrant was not vague or unreasonable

The ABC’s main ground for challenging the search warrant was to claim it was not sufficiently precise. The warrant was certainly very broad: it listed 19 different types of documents that police might find, including emails, minutes, reports, diaries and briefing documents. These could relate to 39 specified topics, including the ABC, the 7.30 report, the Australian Defence Force and the stories published online.

However, the warrant also specified offences under the Defence Act 1903, the federal Criminal Code and the Crimes Act 1914. Those offences related to the sharing (not publication) of the leaked documents. The court held that this created sufficient clarity around the types of evidence the police were looking for. The warrant therefore set ‘meaningful parameters’.

The ABC also made a similar argument that the warrant was legally ‘unreasonable’. However, this is a very difficult test to satisfy, as it requires a degree of illogicality or irrationality. The court recognised that police have a broad discretion to investigate criminal offences, and there was no suggestion they did not act genuinely in seeking the warrant.

2. The implied freedom of political communication does not protect journalists from search warrants

The ABC also argued that the power to issue search warrants – found in section 3E of the Crimes Act 1914 – cannot be used in a way that breaches the implied freedom of political communication.

The implied freedom is not the same as a right to freedom of speech (as can be found, for example, in the US Constitution). Instead, it is a limitation on the lawmaking powers of Australian Parliaments. Under this freedom, laws cannot restrict speech about governments unless they do so in a way that is proportionate to achieving some legitimate purpose.

The court held that the constitutionality of section 3E could not be determined by a single case, and it confirmed that the search warrant power was valid. Even if that law indirectly affects the implied freedom, the court reasoned, it does so in a proportionate way for the legitimate purpose of investigating serious crimes.

What about journalists’ rights?

The judgment discusses journalists’ rights to some degree, but these considerations had little influence on the outcome of the case. This is because rights and protections for journalists either don’t exist, don’t have legal force, or don’t apply to the exercise of search warrants.

For example, shield laws protect journalists from discovery processes or other court orders that would require them to reveal their sources. However, the question of whether police can access journalistic material is legally quite distinct. In any case, it is clear under the terms of the Evidence Act that those protections do not apply to police search warrants.

There are also guidelines and ethical codes that require journalists to protect their sources, but these do not have legal force. Protecting source confidentiality is core to every journalist’s work, but unfortunately this does not mean they have a legal ground to point to in court.

What can be done to protect journalists now?

The Federal Court’s decision was disheartening for public interest journalism in Australia. Legally, however, it is not surprising, as it relied largely on established methods of statutory construction.

In considering submissions on the implied freedom, Justice Abraham might have given greater weight to the significant impacts that search warrants can have on journalistic freedom. However, following the High Court’s recent decision in Comcare v Banerji, it is not surprising that she took a relatively conservative approach.

It was not open to Justice Abraham – and it will not be open to judges in future cases – to create rights for journalists that don’t currently exist. It is Parliament’s role to enact such rights, and for judges to interpret and apply them.

For journalistic freedom to have greater legal force in Australia, the government needs to respond to the Federal Court’s decision by introducing new protections into Parliament. A Media Freedom Act should include statutory protections for journalists in the exercise of police search warrants, which exist in the other Five Eyes countries. It should also create exemptions to criminal offences where professional news organisations act in the public interest. Until these changes are made, media organisations will face the ongoing possibility of police investigations for public interest reporting.